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TMI Blog2015 (7) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... d notice seeks to reopen the assessment for the Assessment Year 2008-2009. 3. The reasons recorded in support of the impugned notice dated 28/10/2014 for reopening of assessment are on the following two grounds : (i) Under invoicing of the exports on the basis of Justice M.B. Shah Commission's Report; and (ii) Income arising out of mining is an illegal income, in view of the Supreme Court order dated 21/04/2014 in Writ Petition C. No. 435/2012 which had held that the mining leases in Goa had expired on 22/11/2007. Consequently, the income accrued for the Assessment year 2008-2009 cannot be said to be legitimate business income chargeable as income from profits and gains of business but under Income from other sources. 4. The petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Goa has renewed a number of leases of the iron ore lessees with effect from 22.11.2007 for another 20 years. The facts pointed out by you need analysis and understanding of the entire scheme of the mining activities and the consequential actions taken by various authorities in pursuance of the Hon'ble Supreme Court order. This process will be undertaken during the course of the reassessment proceedings u/s 147 read with Section 143(2) of the I.T. Act, 1961." (Emphasis supplied) We searched in vain for the aforesaid stand of the petitioner in its objection dated 09/02/2015, nor was the Revenue able to point out the source from where the aforesaid stand is attributed to the petitioner. 6. In the aforesaid facts, we were of the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in GKN Driveshafts (India) Ltd. v. ITO [2003] 259 ITR 19 has laid down a procedure/ method to be followed before reassessing an assessee under Section 147 of the Act. The Apex Court has formulated the procedure to the effect that whenever a notice to reopen an assessment under Section 148 of the Act is issued to an Assessee, the reasons recorded in support of the same must be furnished to the Assessee on his furnishing the return of income. The Assessee would then have an opportunity to object to the reasons in support of the notice for reopening an assessment and the Assessing Officer on consideration of the objections would dispose of the objections by a speaking order. The above procedure is being consistently followed in all case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und/ reason recorded in support of the notice viz. illegal mining does not apply. However, order dated 20/02/2015, while disposing of the objections, does not deal with the above objection. On the contrary, the order dated 20/02/2015 disposes of an imaginary objection, not taken by the petitioner, by a reasoned order. The least that is expected of Assessing officer while disposing of the objections filed by the Assessee is some application of mind to the objections raised by the Assessee and in that context, take a relook at the reasons recorded in support of the reopening notice. 9. On such a fundamental lapse on the part of the Assessing Officer in disposing of the objections was pointed out to us, we expected the State-Revenue would wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, looking at the manner in which the Assessing Officer has passed the order dated 20/02/2015 and also the affidavit dated 06/05/2015 filed in support of the order, we are of the view that the petitioner's objection would not be objectively dealt with by the Assessing Officer, who authored the order dated 20/02/2015 and the deponent of the affidavit dated 06/05/2015 resisting the petition. 10. However, before closing we may point out that the affidavit filed by the Deputy Commissioner of Income Tax dated 06/05/2015, particularly paragraph 8 thereof, indicates that the stand of the Revenue is that even if the Assessee is only engaged in a trading activity, the impugned notice for reopening is sustainable on account of under invoicin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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